16 Dec Enforcement of a statutory duty
Enforcement of a statutory duty
by George Coucounis
“Enforcement of statutory duty may be ordered by applying for a writ of mandamus to the Supreme Court’’
Every person exercising public authority must properly apply the law for the benefit of the public and without interfering with any recognized right of any person. Indeed, such person is given a second opportunity to review his act for active compliance to make it lawful, upon a discrete demand by the person affected. The public authority may be the lower Courts, the Registrar of Companies, the Director of the Land Registry Office, the District Officer and any other Authority, if acting in the field of private law and subject to a duty under the Act or Regulations to perform a duty. In the absence of any remedy offered for redress and to strengthen the law, the procedure of filing an application before the Supreme Court for a writ of mandamus to enforce performance of the duty due is offered.
The two recent judgments of the Supreme Court are guiding, the one delivered in C.A.183/2022 dated 1.12.2022, relating to failure to perform a duty on the part of the Registrar of Companies under the Companies Law, Cap.113, Article 192(4) and the other issued in C.A.192/2022 dated 6.12.2022 and related to an alleged failure of the Director of the Land Registry to perform its duty pursuant to the Immovable Property Law, Cap.224, Article 61(1).
Changes in the corporate management structure of certain companies occurred and one of these changes involved the directors and the secretary. The company notified the Registrar of Companies of the changes by submitting Form HE4. The Registrar under Article 192(4) has a duty to record the changes, but because they also affected the secretary, he required that the form be accompanied by a signed certificate from both the previous and the new secretary. For reasons explained to the Registrar it was not possible for the previous secretary to sign the certificate and although he was requested by letter to actively perform his duty in accordance with the law, he refused to make the entry. The rights of the companies are therefore affected and they sought leave of the Supreme Court to file an application for a writ of mandamus to compel the Registrar to perform his statutory duty.
The Court analysed the case law and emphasised that for a writ of mandamus the issue raised must fall within the sphere of private and not public law. If the duty omitted falls within the public law there is no question of issuing a mandamus. Before resorting to the remedy of mandamus, the person concerned has to prove that he has demanded from the public body the performance of the statutory duty and his demand has been refused. Having regard to the provisions of Article 192(4), the Court held that a prima facie case was established so that a response on the part of the Registrar, for his alleged omission and express refusal, to make the registration in question should be made and granted the leave sought.
Permission was also sought for a writ of mandamus to compel the Director of a Land Registry to proceed to cancel the transfer of certain properties and restore them to their former condition, on the basis of an existing interim order of non-dispossession and transfer to any person. The order, which was served on the Land Registry, was issued in the context of a dispute between the seller and the buyer due to the non-transfer of the properties because they were mortgaged. The purchaser, who paid a substantial deposit for their purchase, found after the seller’s failure to transfer them, that the mortgage lender proceeded to sell them and upon application to the Land Registry, the latter accepted the application to transfer them in the name of the new purchaser. The director of the vendor’s company demanded that the Director of the Land Registry apply the provisions of Article 61(1-3), but in reply she advised that the disputed properties were acquired by the new purchaser in accordance with the provisions of Law 9/65 and therefore sought the permission of the Supreme Court to issue a mandamus order.
The Supreme Court after referring to the conditions laid down in the case law for issuance of mandamus, concluded that the petitioner did not have the necessary legitimate interest since it was the owner company that contracted for the sale of the properties. What is contained in Article 61(1) does not create a specific obligation on the Director of Land Registry, the breach of which is amenable to the issuance of a writ of mandamus. Consequently, the Court refused to give leave and dismissed the application.